UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Securities Act of 1933
Release No. 7587 / September 28, 1998
Investment Company Act of 1940
Release No. 23468 / September 28, 1998
Administrative Proceeding
File No. 3-9730
CEASE-AND-DESIST PROCEEDING INSTITUTED AGAINST BRYON G.
BORGARDT AND ERIC M. BANHAZL
The Securities and Exchange Commission today instituted a
public cease-and-desist proceeding against Bryon G. Borgardt
("Borgardt") and Eric M. Banhazl ("Banhazl"), charging them with
disclosure violations relating to Target Income Fund (the
"Fund"), a now-defunct mutual fund formerly based in Glendora,
California. Borgardt, age 50, a resident of Carlsbad,
California, was an interested director and portfolio manager of
the Fund and president of the Fund's investment adviser from
October 8, 1992 to May 3, 1994. Banhazl, age 40, a resident of
Glendora, California, was secretary and treasurer of the Fund
from October 8, 1992 to April 1, 1997, and portfolio manager of
the Fund and president of the Fund's investment adviser from May
3, 1994 to November 1, 1995.
The Order alleges that the Fund was formed in 1991 to invest
in asset-backed loans. The Fund was organized by, among others,
Banhazl (representing a mutual fund consulting firm), and
principals of Concord Growth Corporation ("Concord"), a
California commercial finance company that originates and
services asset-backed loans to businesses which typically are
unable to qualify for conventional bank or thrift loans. The
Fund's directors were selected in or about mid-1992. One of the
initial directors was Reid Rutherford ("Rutherford"), Concord's
chairman, chief executive officer, and a 20% owner. Borgardt,
who had a pre-existing relationship with Concord, also became a
Fund director as well as the Fund's portfolio manager and
president of the Fund's investment adviser.
The Order alleges that during Borgardt's 18-month
association with the Fund, the Fund used four registration
statements to sell its shares to the public. Borgardt signed
each of these registration statements as a Fund director.
Banhazl was associated with the Fund at the time of these four
filings, and also at the time of two additional registration
statement filings, the last of which occurred in March 1996.
Banhazl signed all six registration statements as the Fund's
chief financial officer.
The Order alleges that throughout Borgardt's and Banhazl's
association with the Fund, the Fund's entire investment portfolio
consisted of loan participations purchased from, and originated
and serviced by, Concord. The Order alleges that in each of the
first four registration statements signed by Borgardt and
Banhazl, the Fund failed to disclose the material conflict of
interest resulting from the fact that Rutherford was
simultaneously a Fund director and Concord's chairman, chief
executive, and 20% owner. The Order also alleges that in the
last three registration statements signed by Borgardt, and in the
last five signed by Banhazl, the Fund failed to disclose its
relationship with, and complete dependence on, Concord. The
Order further alleges that Borgardt and Banhazl each knew, or
reasonably should have known, that the registration statements
they signed omitted material facts. The Order charges Borgardt
and Banhazl with violations of Sections 17(a)(2) and (3) of the
Securities Act of 1933 ("Securities Act"), and Section 34(b) of
the Investment Company Act of 1940 ("Investment Company Act").
A hearing will be scheduled to take evidence on the staff's
allegations and to afford Borgardt and Banhazl an opportunity to
present any defense thereto. The purpose of the hearing is to
determine whether the allegations are true and whether any
remedial action should be ordered by the Commission.